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Majority sides with hotel in lawsuit stemming from molestation

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A divided Indiana Supreme Court affirmed summary judgment for a hotel, its owner and the hotel franchisor that the hotel’s insurance company had no duty to defend a civil complaint brought by a minor motel guest who was molested by an off-duty employee.

R.H.M. was a guest at the New Castle Holiday Inn Express owned by Anil Megha when employee Michael Forshey entered his locked room at night and molested him. Forshey has been convicted of child molestation. R.H.M.’s mom sued the hotel, the franchisor Holiday Hospitality and Megha, claiming, among other things, battery, negligent retention and supervision, and negligent hiring.

AMCO Insurance Co., which insured the Holiday Inn Express, claimed it owed no coverage for any liability from the complaint and it had no duty to defend any of the defendants. Holiday Hospitality and Megha were listed as additional insureds. The policy expressly disclaimed coverage for acts of molestation or abuse by excluding any bodily injury or personal or advertising injury arising from the actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of the insured.”

The trial court ruled in favor of the defendants, but the Indiana Court of Appeals reversed, finding a genuine issue of material fact as to whether R.H.M. was in the care, custody or control of the hotel at the time of the molestation.

In Holiday Hospitality Franchising, Inc. v. AMCO Insurance Company, 33S01-1206-CT-312, Justice Steven David, writing for the majority, affirmed summary judgment for the insurance company. Focusing on the “care, custody or control” portion of the policy and using those terms’ definitions from Webster’s Dictionary, David and Justices Mark Massa and Loretta Rush found the child was not in the custody or control of the hotel, but he was in the care of the hotel at the time of the molestation.

“Simply put, we believe these facts reflect precisely the sort of scenario contemplated by the parties to be excluded from coverage when they agreed to the insurance contract,” David wrote.  
 
Chief Justice Brent Dickson concurred in a separate opinion, believing the proper understanding of “care” is established by Indiana law that a hotel guest is considered a business invitee and is entitled to a reasonable duty of care. In this case, “care” exists as a matter of law, so the exclusion applies.

Justice Robert Rucker dissented, believing it should be up to the trier of fact as to whether R.H.M. was under the control or care of the hotel.

 

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  1. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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